Race, Gender and Power in AmericaThe Legacy of the Hill-Thomas HearingsEdited by Anita Faye Hill and Emma Jordan

Chapter One: The Hill-Thomas Hearings

What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women

An essay by A. Leon Higginbotham Jr.

I have a pleasant disclosure to make, and it is important to make it now, before I say anything else. I count Professor Anita Hill as a friend. She is a person of integrity and courage who made a great sacrifice in testifying before the Senate Judiciary Committee in October 1991. Therefore, I will not pretend that my commentary about the Hill-Thomas hearings begins from a blank slate. Indeed, Professor Hill is not the only participant in the October 1991 hearings with whom I can be said to have had prior communication.(1) In the past, I have been both praised and condemned for writing to and about Justice Thomas. Because of these past comments, now I often find myself in the position of being thought of as some sort of an "expert" on Justice Thomas. It is not a designation I ever asked for or even desired, In any event, in order to be able to understand the circumstances of the Hill-Thomas hearings, one needs to be more than an expert on Justice Thomas's judicial philosophy or lack of it. For example, in her introduction to Race ing Justice, En gendering Power,(2) Toni Morrison writes that while we may know what "took place" in the chambers of the Senate Judiciary Committee back in October 1991, we do not yet know "what happened, how it happened, why it happened," and that for us to know the full story of what happened, "the focus must be on the history routinely ignored or played down or unknown."

I believe that part of what Morrison meant is that if we are to know what happened during the Hill-Thomas hearings, our focus must be on the history of black women in this country. That history, which is "routinely ignored or played down or uknown," has often been marked by what I would call the precepts of slavery. Though I have discussed these receipts in far greater detail elsewhere,(3) for present purposes I need only discuss: (1) white male domination over both black and white females; (2) black male domination over black females; and (3) the persistent denigration of black women in this society. These three precepts were the unseen though certainly not unheard witnesses in the Hill-Thomas hearings. They drove every question, modified every answer, put a spin on every fact, and cloaked every comment made in support of or against Clarence Thomas or Anita Hill.

The purpose of this paper is to take a look at these precepts from a historical and legal perspective. For that, I will ask you to imagine the legal evidence of these precepts as a series of historical snapshots,

II

The first snapshot is Virginia, 1662. That year, the Virginia legislature passed a statute to attack the "problem" caused by women indentured servants having children out of wedlock. The statute required unmarried women to serve an additional two years of indentured servitude when they had children out of wedlock.(4) In the preamble, the legislature noted that "some dissolute masters" had "gotten their maids with child" in order to "claim the benifit of their service," and that some loose women, hoping to gain their freedom, had laid "all their bastards to their masters." Given that state of affairs, the legislature provided that any woman servant got with child by her master "would serve an additional two years" after her indenture was scheduled to expire. She was sold, with the church wardens receiving the funds payable in tobacco for two years. While conception of a child required a male's active involvement (at least back in 1662), only the mother had the additional burden of servitude.

Further, in the case of sexual relations between a male master and a female servant, it is entirely possible that the female servant was raped. In any event, even if the master did not actually rape the servant, at the very least he voluntarily chose to enter into sexual relations with her. That probably was not the case for the female servant. Since the master held almost absolute power over her life, her having sexual intercourse and bearing his child may not have been voluntary. Nevertheless, the "church wardens" obtained the rewards from the labor of a servant for two years. The child of the union suffered the social stigmatization of being a bastard, And the female indentured servant gave two more years of servitude to the state for an act that should not have been a crime on her part, in addition to an untold number of years to a child she may not even have wanted.

In 1662 most if not all of the indentured female servants were white. This first snapshot gives a brief demonstration of one aspect of precept 1: white male domination over white women, If a black female indentured servant had existed at the time, she would have been subjected to similar denigration and exploitation for the benefit of white males.

III

The second snapshot is also Virginia, 1662. That year, the Virginia legislature passed a statute to address the "special" problem of sexual relations between blacks and whites. The statute provided:

Children got by an Englishman upon a Negro woman shall be bond or free according to the condition of the mother, and if any Christian shall commit fornication with a Negro man or woman, he shall pay double the fines of a former act.

"Englishman," as used in the statute, was a synonym for whites generally, or white Englishmen specifically. The fact that males were punished with a double fine may at first glance suggest that the statute was not biased toward white males. Quite the contrary. In fact, the statute maximized the economic advantages white males stole from the bodies of black women, Prior to passage of this statute, it had been an open question as to whether the English legal doctrine that the status of a child is determined by the status of the father would apply to the children of white male masters and black female slaves. The 1662 legislature repudiated the English law concept as to the status of a child being determined by the status of the father, and instead accepted the Roman law doctrine of partus sequitur ventrem.(5) The consequence of the children of white Englishmen and black women taking the slave status of their mother was that white males regularly reaped the economic benefits of what was the rape of black women. The children of the white master and the black female slave became slaves themselves. The white master could then work his slave progeny to nurse his legitimate children, harvest the fields, pick the cotton, and stoke the engines of American industry. When the white master became a statesman, he could say of his slaves regardless of their paternity what Mr. Gholson of the Virginia Legislature said in 1831 in arguing against abolition:

Why I really have been under the impression that I owned my slaves. I lately purchased four women and ten children in whom I thought I obtained a great bargain, for I really supposed they were my property, as were my brood mares.(6)

This snapshot is more specific evidence of another part of precept 1: white male domination over black women.(7)

IV

The third snapshot is Missouri, 1850. That year, Robert Newsom, a seventy year old white male, purchased Celia, a fourteen year old black slave girl.(8) On the way from the slave market to his farm, Newsom raped Celia for the first time, Over the next five years, he regularly visited her cabin and had sexual intercourse with her if she consented, or raped her if she did not. Newsom was the father of at least one of the two children Celia bore during that five year period. In 1854 Celia started a relationship with a black male slave named George, who apparently pressured her to terminate sexual relations with Newsom. In February 1855, Celia became pregnant with her third child. From that point on, she was constantly sick. She told Newsom that she would no longer have sexual relations with him and warned him that she would hurt him if he did not stop raping her. On the afternoon of June 23, 1855, Newsom told Celia that he was coming down to her cabin that night. Celia again warned Newsom that she would hurt him if he molested her. That night, when Newsom arrived at the cabin, Celia struck him in the head with a stick. Newsom apparently died instantly.

Still pregnant, Celia was brought to trial for murder in the first degree. After presentation of the evidence, Celia's court appointed counsel requested the court to instruct the jury that the rape of a slave woman was not a property right of the master, and that if it was justifiable homicide for a white woman to kill her assailant, so too was it justifiable homicide for Celia to kill Newsom to prevent him from raping her. The trial judge rejected the requested instructions. Instead, the judge submitted to the jury the following instructions:

If Newsom was in the habit of having intercourse with the defendant who was his slave and went to her cabin on the night he was killed to have intercourse with her or for any other purpose and while he was standing in the floor talking to her she struck him with a stick which was a dangerous weapon and knocked him down, and struck him again after he fell, and killed him by either blow, it is murder in the first degree.

The jury returned a verdict of guilty. Celia was sentenced to death. The Missouri Supreme Court refused to hear her appeal and denied her a stay of execution. Celia escaped but was quickly recaptured. The court, apparently without a trace of irony, "mercifully" delayed her execution until she could give birth to her baby, which was, after all, the slave property of Newsom's estate. The baby, we are told, was born dead, On December 13, 1855, Celia, who would forever be known as Celia, a slave with no last name, was taken from the prison gallows and "hanged until she died."

This snapshot illustrates both precepts 1 and 2. It illustrates precept 1 because Celia, in life and in death, was obviously dominated and violated by white males. But it also illustrates precept 2 because George, the black slave, in his own way exploited Celia too, George pressured Celia to break off relations with Newsom because he himself did not have the power to defend Celia. Yet George must have known full well that Celia was equally powerless to terminate the relationship, In the end, the pressure George exerted on Celia may have engendered the circumstances that led her to kill Newsom. It is true that Ceorge was charged with the unbearable burden of not being able to defend his lover. It is also true that he unjustly sought to shift the impossible weight of his burden to Celia,

The fourth snapshot is Mississippi, 1859. That year, the Court of Appeals of Mississippi considered the case of George (a slave) v. The State.(9) In that case, a black slave named George was convicted of raping a black slave girl about nine years old. On appeal, George's counsel argued before the court as follows:

The crime of rape does not exist in this State between African Slaves, Our laws recognize no marital status as between slaves, their sexual intercourse is left to be regulated by their owners. The regulations of law, as to the white race, on the subject of sexual intercourse, do not and cannot, for obvious reasons, apply to slaves; their intercourse is promiscuous, and the violation of a female slave by a male slave would be a mere assault and battery.

The Court of Appeals of Mississippi agreed with George's counsel and reversed his conviction. The court held that under the common law and under Mississippi statutory law it was not a crime for a black man to rape a black woman or even a girl of nine. According to the court, "Masters and slaves cannot be governed by the same common system of laws; so different are their positions, rights and duties."

Of course, in stating that masters and slaves were different in their "positions," the court was not simply referring to the fact that masters "positions," the court was not simply referring to the fact that master were free and slaves were not, or to the fact that masters possessed full citizenship rights and slaves did not. The court was also alluding to the theory that masters and slaves were subject to different laws because masters possessed moral standards and slaves did not. Specifically, the court was alluding to the widely held theory that white women possessed moral virtues and black women did not. According to that theory, black women so totally lacked "moral virtue" that it was not within their nature to be raped, Indeed, for some time the law simply did not recognize the rape of a black woman by any man, either black or white,

The snapshot of George (a slave) v. The State is an example of precepts 2 and 3: the domination of black women by black men, and the persistent denigration of black women American society.

VI

The fifth and final snapshot is Washington, D.C., October 1991, in the chambers of the Senate Judiciary Committee. Professor Anita Hill was questioned, berated, and abused by many members of an all white and all male Senate committee. Many senators dismissed her testimony of having been sexually harassed by Clarence Thomas with outright accusations that she was lying, and with sly innuendos that she was a scorned, vengeful, and psychotic woman. Senator Arlen Specter accused Professor Hill of perjury to Congress a punishable federal offense without producing the least bit of evidence to back up his charge, Senator Orrin Hatch, waving over his head a copy of The Exorcist, managed to suggest quite seriously that Professor Hill was as demented as the character in the novel who was possessed by the devil. Senator Simpson, recalling the McCarthy witch hunts, made the vague and sinister announcement that he had reams of compromising letters about "this woman" coming out of his every pocket, Clarence Thomas, for his part, implied that Professor Hill, a dark skinned woman, resented him for his preference for women of "lighter complexion." Finally, Clarence Thomas closed forever any real consideration of Professor Hill's charges by protesting that Professor Hill was being used as the instrument of his lynching.

Clarence Thomas's charge was, of course, ridiculous. There has never been a recorded instance of a black man being lynched for abusing a black woman. More to the point, for a very long time, black men were not even prosecuted for physically abusing or raping black women, Yet as preposterous as the charge was, it was clearly effective in silencing and shaming the 1991 Senate Judiciary Committee, which was no more gender or racially integrated than the 1662 Virginia Assembly, which decreed that black women would be denied the legal standards of English law.

VIII

The Hill-Thomas hearings represented a sequela of attitudes that in some ways were not very different from those of the antebellum "statesmen" and "judges" who regarded all women, and particularly black women, as inferior persons. Thus, Anita Hill was treated far more harshly by the Senate committee than she would have been had she been white, and Clarence Thomas was treated far more generously than he would have been had the victim been a white woman. This is clearly demonstrated by analyzing three theoretical scenarios, with the principal roles in the hearings recast and all other factors being the same.

Scenario 1: if the nominee had been Clarence Thomas and the victim had been a white woman, either the Judiciary Committee would have rejected Clarence Thomas unanimously, or more probably, the president would have withdrawn his name the moment the evidence was submitted.

Scenario 2: If the nominee had been a white man and the victim had been a white woman, the white nominee would have been rejected by the Judiciary Committee and would never have been confirmed. It is worth recalling that the Armed Services Committee rejected Senator John Tower's nomination as secretary of defense, even though, unlike Clarence Thomas, he would not have won a lifetime appointment. Part of the rejection was predicated on his alleged questionable relationships with white women.(10)

Scenario 3: If the nominee had been a white man and the victim Anita Hill, he would have been overwhelmingly rejected. Some of the so called civil rights leaders who supported Clarence Thomas would have been the first to demand the rejection of a white Supreme Court nominee accused of sexually harassing an African American woman.

In the scenario that was actually played out in October 1991, of course, the nominee was a black man and the victim was a black woman. Suddenly the senators became more tolerant in evaluating the nominee.

Even before Professor Hill had completed her testimony, every member of the Judiciary Committee, those who had questioned her sanity as well as those who had failed to defend her, made sanctimonious little statements about how grateful they personally were that she had raised their consciousness on the issue of sexual harassment, and about how certain they were that history would judge her a true heroine in the fight for equal rights and equal opportunities for women in the United States. History, they seemed to be saying, would in the end treat her more kindly than they themselves had.

That many of these gentlemen made wild and unfounded statements about Professor Hill with apparent immunity says nothing about the extent of her sanity and everything about the degree of their own integrity, and about the measure of respect accorded black women in this society, However, the fact that many of the white male members of the Judiciary Committee dismissed Professor Hill's testimony by accusing her of being a liar and a delusional woman does not, in and of itself, mean that those senators am singularly dimwitted. They may or may not be, But the point here is that those senators were not the only ones who tended to doubt her testimony. After all, Clarence Thomas was confirmed to the Supreme Court precisely because the senators who voted for him had good reasons to believe that the majority of their constituents would also dismiss Professor Hill's testimony as the inexplicable ranting of a disturbed woman. In the end, therefore, Clarence Thomas's confirmation says more about how we define ourselves as a society than about the personal inclinations of the members of the Senate Judiciary Committee.

Conclusion

As I look back on the Senate Judiciary Committee hearings of October 1991, the words of Samuel Johnson in 1775 again have meaning to me: just as he said of the conduct of white colonialists, the performance of many members of the Judiciary Committee was "too foolish for buffoonery and too wild for madness." As I watched the members of the committee during the hearings, I could not help but feel that most of the "good Senators" just did not "get it." It seemed to me then, just as it seems to me today, that in focusing exclusively on the issue of sexual harassment in the "workplace," the Judiciary Committee was only interested and only mildly so in learning what took place between Professor Hill and Clarence Thomas. They certainly were not interested in what happened.

Had the senators been interested in the question of why Professor Hill was sexually harassed, they would have been forced to face immediately and directly the history of how black women have been dominated and denigrated by white males and by black males in this society. But much more than the history of domination and denigration of black women, these senators would have been forced to confront the present day reality of how many but not all of them dominated and denigrated Professor Hill because she was a woman, and because she was a black woman. By ignoring and playing down the history and the story of black women in this country, the Senate Judiciary Committee effectively told Professor Hill and other women the same thing: that the law is the embodiment of what must senators represented and that Professor Hill's story had no place in it. With this volume, we may yet begin to tell them they were wrong.

Notes

This paper was adapted from a paper researched by myself and my former law clerk, Aderson Bellegarde Francois, J.D., NYU 1991.

(1.) See A, Leon Higginbotham, Jr., "An Open Letter to Justice Clarence Thomas from a Federal Judicial Colleague," 140 University of Pennsylvania Law Review 1005 (1992).

(3.) In the forthcoming book Shades of Freedom, chapter 2, I discuss in detail "The Ten Precepts of Slavery: The Consensus That Led to the Legitimization of Slavery and Racism" (Oxford University Press).

(4.) For discussion of this statute, see A. Leon Higginbotham, Jr., In the Matter of Color (Oxford University Press, 1978), p. 42.

(5.) "The offspring follows the mother; the brood of an animal belongs to the owner of the dam; the offspring of a slave belongs to the owner of the mother, or follows the condition of the mother. A maxim of the civil law, which has been adopted in the law of England in regard to animals, though never allowed in the case of human beings, 2 Bl. Comm. 390, 94; Fortes. 42." Black's Law Dictionary, 3d ed, (West Publishing, 1933).

(6.) See A, Leon Higginbotham, Jr., "Racism and the Early American Legal Process, 1619 1896," 407 Annals of the American Academy of Political and Social Science 1 17 (1973) (quoting William Goodell, The American Slave Code (1853; reprint, New American Library, 1968), p. 36).